AI Drafter 
TaxTMI 
TaxTMI 
2016 (6) TMI 60
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....randum and Articles of Association, which are annexed with the petition as Annexures P-3 and P-6, respectively. The registered office of the Quatrro Global Services Private Limited (Petitioner Company No.1) and Scope e-Knowledge Solutions Private Limited (Petitioner Company No.II) is at Gurgaon. The Board of Directors of Quatrro Global Services Private Limited (Petitioner Company No.1) and Scope e-Knowledge Solutions Private Limited (Petitioner Company No.II) have approved the Scheme in their respective meetings held on 01.12.2015. Their resolutions are annexed with the petition at Annexures P-2. Earlier the petitioner-Companies had approached this Court by way of CP No.220 of 2015 in which vide order dated 08.12.2015 convening of meetings of the Secured and Unsecured Creditors of Quatrro Global Services Private Limited (Petitioner Company No.1) and Equity Shareholders of the Scope e-Knowledge Solutions Private Limited (Petitioner Company No.II) were dispensed with. However, meeting of Equity Shareholder of the Quatrro Global Services Private Limited (Petitioner Company No.1) was directed to be held on 23.1.2016 for which, the Chairman and Co-chairman were appointed. The C....
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....trro Global Services Private Limited into Scope e-Knowledge Solutions Private Limited (i.e. the Resulting Company) is as per clause 10 of part B of the Scheme. However, the Petitioner Companies have not furnished certificate from the statutory auditors of Transferee Company that the Accounting Treatment proposed is not in violation of AS issued by the Central Government. 9. That the deponent states that the Registrar of Companies vide para 25 of the report has stated that it has been mentioned in para 12 of the proposed Scheme inter alia that upon sanction of the Scheme, the name of the Resulting Company shall automatically stand changed without any further act or deed from Scope e-knowledge Solutions Private Limited to Scope e- Knowledge Centre Private Limited. In this regard, it is submitted that the concerned company may be directed to comply with the relevant provisions of the Companies Act, 2013 and Guidelines issued by the Ministry from time to time. 10.1 That the deponent states that the Registrar of Companies vide para 31 of the report has made following observations: (i) The Scheme of arrangement envisages the demerger of QGS KPO Business Global Services P. ....
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....that: The Petitioner Company has obtained certificate from the Statutory Auditors which states that the accounting treatment provided in the Clause 10 of the Scheme is outside the purview of the Accounting Standards as specified under Section 133 of the Companies Act, 2013, read with Rule 7 of the Companies (Accounts) Rules, 2014 and the accounting treatment as provided in the Scheme is in conformity with the Generally Accepted Accounting Principles. The certificate from the statutory auditors is attached herewith as "Annexure-1" 3. That as far as the observations raised in Para 10.1 of the Affidavit of the Regional Director read with Clause 31 of the report of the Registrar of Companies is concerned, it is submitted that : 3.1 The observation of Regional Director is as under: "The Scheme Scheme of arrangement envisages the demerger of QGS KPO Business of Quatrro Global Services P. Ltd into Scope e- Knowledge Solutions P. Ltd. It is to be noted that there is no Valuation Report along with the Scheme which has assessed the value of the said Business, states the corresponding Assets and Liabilities which shall stand transferred and enumerates the accounting treatment of the ....
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....rsuant to demerger. Further, the Petitioner Company has already submitted valuation report to the office of RD in Annexure C vide letter dated February 15, 2016. As per valuation report following share exchange ratio is fair and reasonable: "1 (One) fully paid up equity share of face value of Re 1 (Rupee One Only) each in Scope Solutions India shall be issued and allotted for every 100 (One Hundred) equity shares held in QGS India" g) The Petitioner Company further submits that pursuant to the Scheme of demerger, QGS India shall transfer all the assets and liabilities relating to the QGS KPO Business to Scope Solutions India at their respective book values. The Petitioner Company further states that indicative/provisional Balance sheet attached as Annexure A to the Scheme provides an indication of assets and liabilities related to QGS KPO Business getting transferred to QGS India at book values pursuant to Scheme. h) As mentioned above, as the restructuring is within the subsidiary and the holding company and the assets and liabilities are transferred at the book values as per the accounting treatment provided in clause 10 of the Scheme, there is no requirement for t....
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....hareholders of the all companies. The various courts judgments which have held are Miheer H. Mafatlal vs Mafatlal Industries Ltd (AIR 1997 SC 506), Reliance Petroleum Vs. Unknown, [2003] 46 Comp. SLC 38 GUJ, EITA India Ltd. Re, AIR 1997 Cal 208,. k) Further, the Petitioner Company had obtained Valuation Report and is attached herewith as "Annexure 2" 3.2 The observation of Regional Director is as under: "Explanation to Paragraph 1.5 of the Schemes states that whether any particular assets or liability pertains or does not pertain to the Demerged Undertaking or whether it arises out of the activities or operations of the Demerged Undertaking shall be decided by mutual agreement between the Board of Directors of QGS India (Demerged Company) and Scope Solutions India (Resulting Company). As this does not specify Assets and Liabilities of the Demerged Company which shall be transferred upon sanction of the Scheme the Petitioner may be directed to delete the same from the Scheme and clearly state the Assets and liabilities being transferred in accordance with a valuation done by an Independent Valuer in this regard" That as far as the observations raised....
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....in names, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world; f) any and all permits, rights, entitlements, allotments, approvals, consents, concessions, exemptions, liberties, advantages, noobjection certificates, certifications, registrations, trade names, trademarks, service marks, copyrights, domain names, easements, goodwill, licences, tenancies, offices, sales tax credits, income tax credits, privileges and benefits of all contracts, agreements, and all other rights including lease rights, licences, powers and facilities of every kind and description whatsoever pertaining to the said Demerged Undertaking; g) any and all earnest monies and/or security deposits, payment against warrants or other entitlements in connection with or relating to the said Demerged Undertaking; h) all employees employed by QGS India pertaining to the Demerged Undertaking as on the Effective Date; ....
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....ry liabilities relating to the QGS KPO Business is not specified. Comments regarding the same may be called for from the respective Regulatory Authorities, viz, Income Tax, Service Tax , Customs Authorities etc." That as far as the observations raised in Para 10.1 of the Affidavit of the Regional Director read with the observations raised in Para 4 of clause 31 the report of the Registrar of Companies is concerned, it is submitted that: a) As stated above, the Scheme provides for transfer of all the Assets and liabilities of the QGS KPO Business undertaking from QGS India to Scope Solutions India not limiting the same to the statutory benefits but also the liabilities of the QGS KPO Business. b) The clause 4.12 of the Scheme read as under: "Upon the coming into effect of this Scheme and with effect from the Demerger Appointed Date, all existing and future incentives, unavailed credits and exemptions, benefit of carried forward losses and other statutory benefits, including in respect of income tax (including and not limited to advance income tax and taxes deducted at source), excise (including Modvat / Cenvat), customs, VAT, sales tax, service ta....